“EPA has once again flexed its regulatory muscle by disregarding its authority under the Clean Water Act, ignoring current agricultural practices to protect water quality, not allowing for sufficient time for public input and basing TMDL allocations on factually flawed data,” NCBA Chief Environmental Counsel Tamara Thies said. “While protecting our nation’s water is critical to sustaining the agriculture industry, NCBA is extremely concerned if the draft TMDL is implemented as proposed the result will have substantial, far-reaching effects on agricultural producers not only in the Chesapeake Bay watershed but throughout the country as the EPA has publicly stated it intends to use the Chesapeake Bay TMDL as a model for the entire country.”

According to the comments, EPA acknowledged that even though the “Draft TMDL is the most complex ever attempted, EPA is allowing only 45 days for public comment.” NCBA believes 45 days does not give the public time to fully review and understand all intended and unintended consequences of the Draft TMDL and that it is insufficient under the Administrative Procedure Act to provide for meaningful public comment.

“One of NCBA’s time-honored principles is that government policy and regulation must be based on sound-science,” Thies said. “The EPA has admitted the TMDL allocations are based on flawed data and that the allocations will be revised in 2011. Rather than plowing ahead under a self-imposed deadline with this misguided and sweeping Draft TMDL, EPA should wait until accurate data is available.”

The comments also raise concern that EPA is attempting to exceed its Clean Water Act (CWA) authority in the Draft TMDL. According to the comments, “EPA asserts that it has the authority to issue a TMDL over the objections of a watershed jurisdiction, even though it has not gone through the formal process set forth in the CWA of disapproving a state TMDL.”

“Over the past 25 years, agricultural producers in the Chesapeake Bay watershed have adopted production practices to protect our nation’s water, but the Draft TMDL will hit them with additional burdensome and possibly unattainable water quality standards,” Thies said. “It is extremely concerning that EPA is pushing forward despite acknowledging factual inaccuracies. The agency should take our comments into serious consideration before moving any further forward with the Draft TMDL.”